Renno v. Seaboard Air Line Ry.

• Decision Date: 11 April 1922
• Docket Number: 10867.
• Citation: 112 S.E. 439,120 S.C. 7
• Parties: RENNO v. SEABOARD AIR LINE RY. ET AL.
• Court: South Carolina Supreme Court

112 S.E. 439

120 S.C. 7

RENNO v. SEABOARD AIR LINE RY. ET AL.

No. 10867.

Supreme Court of South Carolina

April 11, 1922

Appeal from Common Pleas Circuit Court of Laurens County; Ernest Moore, Judge.

Action by W. H. Renno, administrator of the estate of Henry Renno deceased, against the Seaboard Air Line Railway and Walker D Hines, Director General of Railroads. Judgment for plaintiff against the Director General, and that defendant appeals. Affirmed.

Cothran and Fraser, JJ., and Shipp, Rice, Bowman, Peurifoy, and McIver, Circuit Judges, dissenting.

Defendant's exceptions were as follows:

The defendant Walker D. Hines, Director General of Railroads appeals to the Supreme Court of South Carolina from the order of his honor, Ernest Moore, presiding judge, in overruling his motion for a directed verdict in his favor made at the conclusion of all the testimony on the trial of this cause and from his order refusing defendant's motion for new trial, and from the judgment entered on the verdict herein upon the following grounds of appeal and exceptions to wit:

(1) Because his honor erred in overruling the defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that no actionable negligence of the defendant had been alleged or established, and he should have so held.

(2) Because his honor erred in not holding on defendant's motion for a directed verdict at the conclusion of all the testimony that the testimony failed entirely to show that the defendant owed plaintiff's intestate any duty whatsoever under the facts and circumstances of the case, and his honor should have so held.

(3) Because his honor erred in not holding on defendant's motion to direct a verdict in his favor at the conclusion of the testimony that the entire testimony failed to show that the defendant had notice or knowledge that its right of way was made use of and resorted to by children of tender years as a place of amusement, whereas he should have so held.

(4) Because his honor erred in not holding on a directed verdict in his favor that plaintiff had failed to establish by the testimony that the defendant had created, erected, constructed, or maintained "an attractive nuisance," whereas, he should have held that the doctrine or law of attractive nuisance was not applicable to the facts of this case.

(5) Because his honor erred in not holding on defendant's motion for a directed verdict in his favor at the conclusion of the testimony that the "wash hole" or pool of water in the branch in which plaintiff's intestate was drowned was not located on or near or in close proximity to a street, public highway, park, or other public place, and that it was not in an incorporated town or village, or in close proximity to or near by a thickly populated community, whereas he should have so held.

(6) Because his honor erred in refusing the defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the wash hole or pool of water was located in the country, in a sparsely settled community, at a considerable distance from the corporate limits of the city of Clinton, and from the community of the Lydia Mill village, and partly within the limits of a private pasture of an adjoining landowner, in a natural water course, at some considerable distance from any public highway, street, or public place, and not immediately adjacent to or near by any place where children of tender years resorted for the purpose of play or amusement, whereas he should have so held.

(7) Because his honor erred in refusing defendant's motion for a directed verdict in his favor at the conclusion of all the testimony on the ground that there was no duty of the defendant to protect or safeguard its right of way at the place in question against trespassers, either adults or children, and especially as against trespassing children of sufficient age and discretion and intelligence to know and appreciate, and who did know and appreciate, the danger, and that such children who know and appreciate the danger stand in identically the same position as adult trespassers, and take the premises as they find them, with all the perils and dangers, and cannot recover for any injury accruing while trespassing, or while there as licensees, whereas he should have so held.

(8) Because his honor erred in refusing defendant's motion to direct a verdict in his favor at the conclusion of the testimony, on the ground that plaintiff's intestate was a bright, active and intelligent boy of sufficient age and discretion to know of and appreciate the danger, and did know and appreciate the danger, of going in swimming in the wash hole or pool of water at the time and place in question, having been warned and cautioned against so doing, and in not being able to swim, and that, under such circumstances plaintiff's intestate entered upon the defendant's right of way at his own risk, and cannot recover.

(9) Because his honor erred in overruling defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the undisputed testimony conclusively establishes that plaintiff's intestate was a bright, active and intelligent boy who had been warned of and well knew the danger of going in swimming at the time and place in question, and therefore the only reasonable inference of all the testimony was and is that plaintiff's intestate was the author of his own injury, and his death was therefore directly due to his own negligence.

(10) Because his honor erred in overruling defendant's motion for a directed verdict in his favor at the conclusion of all the testimony, on the ground that the testimony shows conclusively that the cause of action is not based on any liability of the Director General of Railroads as a common carrier, and is therefore without warrant of law, the court not having jurisdiction of the action, and his honor should have so held.

(11) Because his honor erred in charging the jury as follows: "Where the owner or party in possession of premises by the erection of a dam or embankment over the stream artificially converts the stream into a pool or pond, the doing of such acts, or the maintenance of such artificial pool or pond, where it was done in a populous community, and under circumstances rendering such artificial pool or pond attractive and enticing, as a dangerous place of amusement to which children of tender years in such community resorted, to the knowledge of the owner so maintaining it, such pool would constitute an attractive nuisance if the jury should so conclude from the evidence that it is maintained there, did in fact render such pool or pond dangerous as being in fact an attractive and enticing place of resort for amusement by such children, and that it was so known by the owner so maintaining it, or by the exercise of ordinary care should have been known to be such an attractive and enticing place of resort for such children. * * * But the law further declares that, where such premises are situated in close proximity to a populous community, and where the owner of such premises by the erection or maintenance of a dam or embankment, or other artificial means, makes, or maintains upon such premises an artificial construction or excavation of such character as by its existence or condition to constitute an enticement or allurement to children in general of tender years of normal characteristics in such neighborhood where the existence or maintenance of such enticement is known by such owner to be an attraction to such children generally to congregate for play or amusement upon such premises, then the existence of such allurement is tantamount to an implied invitation to such children of tender years to come upon such premises and amuse themselves there"--the error being (a) that the jury was thereby prevented from determining that the pool or pond of water in the stream was a natural pool or pond of water, and (b) that the jury were thereby instructed in effect that the defendant would be liable to the plaintiff for the death of son if the defendant had negligently erected or maintained an embankment or fill across a natural water course, and (c) that the erection and maintenance of a culvert of insufficient size in said fill or embankment was the direct and proximate cause of the death of plaintiff's intestate, and (d) that the defendant should safeguard a pool of water in a natural water course if the jury should conclude that the same was dangerous to children of tender years, and (e) that his honor thereby charged on the facts in violation of section 26, art. 5, of the Constitution of 1895.

(12) Because his honor erred in charging plaintiff's request to charge as follows: "If you find from the evidence that the defendant through its agents created and maintained a fill on its right of way at the point in question, through which a natural stream of water ran, and if you further find from the evidence that the pipe or viaduct through said fill was constructed and maintained in such a manner as by its own elevation to cause and effect a hole or pool or pond to be created on its right of way in said stream immediately below said fill, if same was the proximate cause of such creation of the pool or hole, then the pond or pool so created is an artificial pool of water, if it was so created and caused by defendant, or so maintained by the defendant by artificial means of such embankment and pipe. In other words if the hole or pool in question was caused by artificial means put in motion by defendant, or kept in motion by defendant, then the pool in that event would constitute an artificial pool; otherwise, in the absence of...